Fox v. United States of America et al

Filing 205

ORDER granting 171 Motion to Dismiss for the reasons set out in the order. Signed by District Judge Daniel P. Jordan III on July 6, 2012. (SP)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
JACKSON DIVISION
CARL FOX, III
VS.

PLAINTIFF
CIVIL ACTION NO. 3:10-cv-126 DPJ-MTP

UNITED STATES OF AMERICA, ET AL.

DEFENDANTS
ORDER

This case is before the Court on the motion [171] of the Defendant United States of
America to dismiss Plaintiff Carl Fox’s claims against the United States under the Americans
with Disabilities Act (“ADA”), pursuant to 42 U.S.C. § 1983, and under the Health Insurance
Portability and Accountability Act of 1996 (“HIPAA”).1 Though he has made numerous other
filings since the instant motion was filed on March 6, 2012, Fox failed to respond to the United
States’s motion to dismiss these claims. The Court finds the motion is well-taken and should be
granted as a matter of law.
I.

Analysis
Fox premises his claims against the United States on the Federal Tort Claims Act

(“FTCA”), the ADA, Section 1983 and HIPAA. See Order [168] at 2–3. The United States
argues in the present motion that the Court lacks subject matter jurisdiction over Fox’s ADA,
Section 1983, and HIPAA claims (together, his “non-FTCA” claims) against the United States,
stating that the ADA and Section 1983 do not apply to the federal government and that HIPAA
fails to create a private cause of action. The Court addresses each category of non-FTCA claims
in turn.

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This Order addresses those claims only and does not affect Fox’s claims under the
Federal Tort Claims Act.

A.

ADA

The ADA addresses discrimination against individuals with disabilities in three general
areas: employment (Title I), public services (Title II), and public accommodations and services
operated by private entities (Title III). Agee v. United States, 72 Fed. Cl. 284, 289 (2006) (citing
Americans with Disabilities Act of 1990, Pub. L. No. 101-336, 104 Stat. 327 (1990) (currently
codified as 42 U.S.C. §§ 12101-12213 (2000))). The United States is excluded from coverage
under each title, however:
The United States is excluded from the definition of an employer under Title I. 42
U.S.C. § 12111(5)(B)(i) (2000). Additionally, Title II of the ADA states that “no
qualified individual with a disability shall, by reason of such disability, be
excluded from participation in or be denied the benefits of the services, programs,
or activities of a public entity, or be subjected to discrimination by any such
entity.” 42 U.S.C. § 12132. The term “public entity” does not include the Federal
Government. See 42 U.S.C. § 12131 (“The term ‘public entity’ means-(A) any
State or local government; (B) any department, agency, special purpose district,
or other instrumentality of a State or States or local government; and (C) the
National Railroad Passenger Corporation, and any commuter authority (as defined
in section 24102(4) of Title 49)”); see also Cellular Phone Taskforce v. FCC,
217 F.3d 72, 73 (2d Cir. 2000) (“Title II of the ADA is not applicable to the
federal government”). Finally, under Title III, the Federal Government is not a
private entity operating a public accommodation or service. 42 U.S.C. § 12181.
Id.; see also Henrickson v. Potter, 327 F.3d 444, 447 (5th Cir. 2003) (stating “the entire federal
government is excluded from the coverage of the ADA” (citing 42 U.S.C. § 12111(5)(B))).
Thus, “Congress has not waived the Federal Government’s sovereign immunity with regard to
ADA claims.” Agee, 72 Fed. Cl. at 289 (citing Gray v. United States, 69 Fed. Cl. 95, 102 (2005)
(holding that “the United States has not waived its sovereign immunity to be sued under the
ADA . . . [and the Court of Federal Claims] has no alternative but to dismiss plaintiff’s ADA

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claim”)). Therefore, to the extent Fox alleges claims against the United States under the ADA,
those claims are dismissed for lack of subject-matter jurisdiction.
B.

Section 1983

Likewise, to the extent that Fox has alleged constitutional tort claims against the United
States under 42 U.S.C. § 1983 and Bivens v. Six Unknown Named Agents of Fed. Bureau of
Narcotics, 403 U.S. 388, 390 (1971), those claims will not lie. See Newsome v. E.E.O.C., 301
F.3d 227, 233 (5th Cir. 2002) (“[T]he United States and its officials are entitled to sovereign
immunity for the civil rights claims brought by Newsome, ‘because the United States has not
consented to suit under the civil rights statutes.’” (citing Unimex, Inc. v. U.S. Dep’t of Housing
and Urban Development, 594 F.2d 1060, 1061 (5th Cir. 1979))); see also Owens v. Suter, No. 02
Civ. 8198(SHS), 2003 WL 942554, at *2 (S.D.N.Y. Mar. 7, 2003) (“There is no waiver of [the
United States’s] sovereign immunity for actions filed pursuant to Bivens, 42 U.S.C. § 1983 and
other civil rights statutes.”). Therefore, any claims against the United States pursuant to Section
1983 or Bivens are dismissed for lack of subject matter jurisdiction.
C.

HIPAA

Finally, to the extent Fox has alleged claims under HIPAA, that statute does not authorize
a private cause of action and this Court has no jurisdiction over private claims under that statute.
Acara v. Banks, 470 F.3d 569, 571–72 (5th Cir. 2006) (“We hold there is no private cause of
action under HIPAA and therefore no federal subject matter jurisdiction over Acara’s asserted
claims.”). Instead, HIPAA limits enforcement of the statute to the Secretary of Health and
Human Services and, under certain circumstances, state attorneys general. Roberts v. Unitrin
Specialty Lines Ins. Co., 405 F. App’x 874, 884 & n.8 (5th Cir. 2010) (citing 42 U.S.C. §
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1320d–5, as amended by the American Recovery and Reinvestment Act of 2009, Pub. L. No.
111-5, § 13410, 123 Stat. 115, 271–76); Acara, 470 F.3d at 572 (citing 42 U.S.C. §§ 1320d–5,
d–6). Therefore, this Court lacks jurisdiction over any claims Fox may have under HIPAA.
II.

Conclusion
For the foregoing reasons, the Court finds the motion [171] of the United States to

dismiss Fox’s claims against it under the ADA, Section 1983 and HIPAA is granted and these
particular claims are dismissed. As stated, this Order does not address Fox’s FTCA claims.
SO ORDERED AND ADJUDGED this the 6th day of July, 2012.
s/ Daniel P. Jordan III
UNITED STATES DISTRICT JUDGE

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